Digital Commons Network^™

Judges As Lawyers, Deirdre M. Smith

Faculty Publications

The integrity of the American legal system and, thereby, of our democracy rests on the shoulders of the judiciary. It is widely understood that the roles of jurist and advocate are incompatible and that the fairness and legitimacy of our court systems require maintaining clear boundaries between those roles. Accordingly, an essential feature of every state’s judicial conduct code is a prohibition on the practice of law by judges. However, many states have carved out exceptions to this prohibition to allow part-time judges sitting in low-level trial courts to supplement their modest judicial compensation by practicing law. The rationale for …

Labor Law’S Impact On The Post-Dobbs Workplace, Jeffrey M. Hirsch

Faculty Publications

The Supreme Court’s Dobbs decision has left many workers, especially in states with restrictive abortion-related laws, in a precarious position. Labor laws and unions, however, provide one avenue for providing these workers with more protections. Unions can demand bargaining to protect or expand health care, leave, and other terms of employment that give workers with means to obtain abortion-related care. Unions can also provide members legal defense and other support if they face prosecutions. Additionally, both union and non-union workers who make up the vast majority of workers in states with restrictive laws may have labor law protection for discussing …

Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland

Faculty Publications

Metadata, often referred to as “data about data,” plays a crucial role in the digital world. It encompasses embedded information within electronic documents that reveals details about their creation, modification, and transmission. In legal proceedings, metadata can be both helpful and controversial, as it can expose sensitive information and potentially support or refute claims of fabricated evidence. With the widespread use of smartphones and other electronic devices, individuals generate vast amounts of personal data, including metadata, that can provide detailed insights into their lives.

This Article explores the significance of metadata in various contexts, such as digital photographs, and highlights …

Identifying And Supporting Financially Vulnerable Women Experiencing Economic Abuse: A Grounded Theory Approach, Leslie Book, Ann Kayis-Kumar, Youngdeok Lim, Jack Noone, Michael Walpole, Jan Breckenridge

Faculty Publications

This study extends the literature by exploring the role of pro bono tax clinics within the social impact ecosystem with a focus on the experiences of women in financial distress who are otherwise unable to access professional tax advice. Using clinic data derived from a pro bono tax advisory clinic, this article finds that 58 per cent of financially vulnerable women seeking pro bono tax services have experienced domestic and family violence (DFV), confirming again the link between financial stress and economic abuse. Yet only 3 per cent of these women were receiving domestic and family violence-related support, highlighting the …

The Crisis Of Unrepresented Immigrants: Vastly Increasing The Number Of Accredited Representatives Offers The Best Hope For Resolving It, Michele R. Pistone

Faculty Publications

The U.S. immigration system is exceedingly complex, and access to legal representation is the primary determinant in obtaining a just immigration outcome. Immigrants must navigate a byzantine, burdensome, and high-stakes legal process, conducted in a language they often do not speak. They often must do so without any legal representation. Unlike criminal defendants, immigrants are not entitled to government-funded lawyers. Legal services organizations, such as Legal Services Corporation, that receive any federal funding are prohibited from providing legal representation to most immigrants. Faith-based and charitable legal services organizations provide some legal representation to immigrants through attorneys, staff members, and volunteer …

The Independent Agency Myth, Neal Devins, David E. Lewis

Faculty Publications

Republicans and Democrats are fighting the wrong fight over independent agencies. Republicans are wrong to see independent agencies as anathema to hierarchical presidential control of the administrative state. Democrats are likewise wrong to reflexively defend independent agency expertise and influence. Supreme Court Justices also need to break free from this trap; the ongoing struggle over independent agencies should be about facts, not partisan rhetoric.

This Article seeks to reframe the fight over independent agencies. By surveying executive branch and independent agency department heads and supervisors during the Obama (2014) and Trump (2020) administrations, we have assembled unique and expansive data …

Building A Culture Of Scholarship With New Clinical Teachers By Writing About Social Justice Lawyering, Caroline Wick, Susan Bennett, Binny Miller, Michelle Assad, Maria Dooner, Mariam Hinds, Jessica Millward, Citalli Ochoa, Charles Ross, Anne Schaufele

Faculty Publications

This Article is a collection of essays about teaching social justice lawyering, as seen through the eyes of eight practitioners-in-residence in the clinical program at American University’s Washington College of Law (“WCL”). They include: Michelle Assad, Maria Dooner, Mariam Hinds, Jessica Millward, Citlalli Ochoa, Charles Ross, Anne Schaufele, and Caroline Wick. They teach in seven clinics, including the Civil Advocacy Clinic, the Criminal Justice Clinic, the Community Economic and Equity Development Clinic, the Disability Rights Law Clinic, the Immigrant Justice Clinic, the International Human Rights Law Clinic, and the Janet R. Spragens Federal Income Tax Clinic. We use the terms …

Deconstructing The Software Factory: A Practical Application Of Interorganizational Network Analysis, Zachary O. Ryan, Mark Reith, Clay Koschnick

Faculty Publications

Over the past 5 years, the number of DoD software organizations that employ nontraditional organizational structures has increased. These organizations, commonly referred to as software factories, often employ the network-based organizational structures found within high-technology industries. This article details ways in which network analysis techniques can be used to create a big picture view of these nontraditional organizations. Drawing on methodologies employed by network researchers, the authors develop and present an interorganizational analysis process that highlights a program's social and economic structures. Following the case history approach, they demonstrate the applicability of this approach by analyzing an emergent DoD software …

The Somalia Affair And The Transformation Of Canadian Military Justice, Preston Lim

Faculty Publications

No abstract provided.

Conceptualising Rural Access To Justice As Supply Chains Primed For Transformation, Hannah Haksgaard, Amanda Kool

Faculty Publications

This chapter is shared with express permission of Bloomsbury Academic. The full book is available at: https://www.bloomsbury.com/us/access-to-justice-in-rural-communities-9781509951642/ The justice gap persists in many rural parts of the world due to a confluence of economic, cultural, and professional factors at play throughout the justice system and society at large. This justice gap means that people in rural areas experience institutions of justice – including access to lawyers and other legal advice – differently than people in urban areas. Travel, distance, the rural lawyer shortage, and other factors create this difference. No single factor or institution can be blamed for the rural …

The Clinic As A Site Of Grounded Pedagogy, Madalyn K. Wasilczuk

Faculty Publications

Legal education tends to focus on teaching students federal law from hefty casebooks, inculcating the ability to "think like lawyers." In a sea of Socratic lectures and hypotheticals, students often take refuge in clinics as an island of practical skills-building, client centeredness, and individual fulfillment. Yet even clinics sometimes fail to highlight for students how the place where they practice, with its particular political context and history, shapes their clients' lives and legal problems. This Article describes the law school clinic as a site of grounded pedagogy: a teaching method that centers the con­nection between local history and the present …

Why & What Attorneys Should Know About Community Resources Available To Survivors Of Domestic Violence, Kristen Clarke Kellems, Kristen Clarke Kellems

Faculty Publications

This CLE program explains why attorneys representing survivors of domestic violence should understand and use community resources as part of effective legal advocacy. Leaving an abusive relationship can create immediate risks involving safety, housing, finances, transportation, childcare, and emotional health. These barriers can affect a survivor’s stability, decision-making, and ability to participate effectively in a legal case. Drawing on survivor and volunteer-attorney perspectives, the presenters show how appropriate referrals can strengthen both client outcomes and legal representation while keeping attorneys within their professional role.

The program surveys Utah resources available through 211, the Department of Workforce Services, domestic violence shelters, …

Gender Violence As A Penalty Of Poverty, Deborah M. Weissman

Faculty Publications

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when …

The Ethics Of Artificial Intelligence In Legal Advocacy, Elissa Germaine

Faculty Publications

(Excerpt)

The use of AI in our personal and professional lives has entered the public consciousness over the past several months. The legal profession and the securities industry are no exception. This article begins to explore the use of open source generative AI in legal advocacy, and the related ethical implications for securities arbitration practitioners.

Studies have corroborated the impact of AI on the legal profession that many of us have been seeing in practice or hearing and reading about. A Goldman Sachs study predicted that the legal profession will be one of the most likely areas to be impacted …

Four Essential Tips For New Attorneys Working With Children And Families, Jennifer Baum

Faculty Publications

(Excerpt)

Congratulations! You’ve started your first legal job working with children and families. Perhaps you work for an institutional provider of legal services for children or as a prosecutor of dependency cases, or perhaps you are defending such cases on behalf of parents and guardians. Or maybe you are in private practice, and this is your first pro bono experience working on a family, immigration, or juvenile court matter. Whatever your role, your job is the same: to represent your client and seek as favorable an outcome as possible.

But you are new, or new to this area of the …

Tribute To Professor James Moliterno, Patricia Roberts, Soledad Atienza, Eleanor Myers, James S. Heller, Gary Tamsitt, Neal Devins, Peter Čuroš, Veronika Tomoszek, Maxim Tomoszek, Paul Žilinčík, Rongjie Lan, José M. De Areilza, Irina Lortkipanidze, Ján Mazúr, Javier Guillen, Lucia Berdisová, James Étienne Viator

Faculty Publications

No abstract provided.

Automated Agencies, Joshua D. Blank, Leigh Osofsky

Faculty Publications

This article presents the first comprehensive study of how federal agencies use automated legal guidance tools—such as chatbots, virtual assistants, and decision-tree systems—to explain complex law to the public. The authors show that while automation offers administrative efficiency and wider reach, it often simplifies or distorts underlying legal rules. Through detailed analysis of agency tools and ten semi-structured interviews with officials, the article demonstrates that automated systems can portray unsettled or complex law as clear, omit exceptions, and answer too narrowly, thereby influencing user behavior in ways agencies neither fully appreciate nor monitor.

The study further finds that agencies lack …

Mass Sovereign Debt Litigation: A Computer-Assisted Analysis Of The Argentina Bond Litigation, Gregory Makoff, W. Mark C. Weidemaier

Faculty Publications

This Article presents a computer-assisted analysis of the first large-scale mass litigation of sovereign debt claims. Between 2002 and 2016, hundreds of lawsuits were filed against Argentina in the United States, virtually all in the Southern District of New York. Historically, litigation against a foreign government would have involved a few hedge funds that had invested in debt at distressed prices. Argentina faced thousands of investors, including small retail bondholders, in litigation that more closely resembled a mass tort or federal multidistrict litigation than any prior episode involving a sovereign’s debt default.

To study this sprawling litigation, this Article combines …

Advising The Victim Of Domestic Violence, Kristen Clarke Kellems, Kristen Kellems

Faculty Publications

This presentation provides Utah attorneys and advocates with a practical framework for advising people experiencing domestic violence. It explains how criminal, protective-order, divorce, custody, housing, financial, juvenile, and immigration matters may overlap, often leaving clients overwhelmed and uncertain about what each court can accomplish. The presenters emphasize client autonomy, safe communication, realistic expectations, and coordination with victim advocates and community resources. Through case hypotheticals, the presentation examines civil and criminal protective orders, restraining orders, court safety planning, custody and parent-time concerns, documentation, communication between parents, social media, supervised visitation, and the risk that litigation may become another means of control. …

Expanding Immigrant Justice By Training Professionals, Michele R. Pistone

Faculty Publications

As a law professor at Villanova University, I headed a clinic that helps hundreds of asylum seekers gain protection in the United States. On good days, I would remember the Talmudic saying, “whoever saves one life saves the world entire,” and take great pride in what my students and I were able to accomplish. On bad days, however, the fruits of our work could seem but a drop in the bucket, for every visit to immigration court demonstrated anew that our clients were the exception. Most immigrants face the immigration system without legal representation of any sort. This unfortunate and …

How The Process Of Building Legal Technology Creates Professional Agility, Amy A. Emerson

Faculty Publications

As the legal and technology sectors continue to merge, the growing importance of applying technology to solve traditional legal problems cannot be overstated. Today’s lawyers must possess not only substantive legal knowledge, but also a high level of technical sophistication and the desire and ability to embrace innovation. Several U.S. law schools offer courses in which students apply substantive legal knowledge and analysis to build functional technologies intended for real world implementation for the benefit of self-represented individuals. These courses teach students about how technology functions, its role in narrowing the access to justice gap, and fulfill many pedagogic goals …

Professional Speech At Scale, Cassandra Burke Robertson, Sharona Hoffman

Faculty Publications

Regulatory actions affecting professional speech are facing new challenges from all sides. On one side, the Supreme Court has grown increasingly protective of professionals’ free speech rights, and it has subjected regulations affecting that speech to heightened levels of scrutiny that call into question traditional regulatory practices in both law and medicine. On the other side, technological developments, including the growth of massive digital platforms and the introduction of artificial intelligence programs, have created brand new problems of regulatory scale. Professional speech is now able to reach a wide audience faster than ever before, creating risks that misinformation will cause …

The Merits Of Merit: Book Review, Neil Fulton

Faculty Publications

No abstract provided.

Arbitration Case Law Updates 2021–2022 (June 2022), Sandra D. Grannum, Elissa Germaine

Faculty Publications

(Excerpt)

This article summarizes leading arbitration cases and related issues that are of particular relevance to the securities arbitration practitioner. There appears to be a move away from compelling arbitration and federal jurisdiction of motions to confirm or vacate. The courts have decided several cases specifically involving FINRA arbitrations, discussing who can bring them and what courts have jurisdiction over them.

In addition, the Federal Arbitration Act was amended by the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, the title of which speaks for itself.

Protective Orders And Limited Guardianships: Legal Tools For Sidelining Plenary Guardianship, David M. English, Nina Kohn

Faculty Publications

By encouraging use of limited guardianships and protective orders instead of full guardianships, states can reduce the likelihood of unnecessarily stripping adults of their civil rights. Yet, although such less restrictive alternatives have long been available to most courts, in practice, their use remains limited and sporadic. This article argues that this lack of use suggests that it is not sufficient for the law to state a preference for these less restrictive alternatives, it must actually create systems that incentivize their use and actively discourage the use of full guardianships. This article then shows, using the Uniform Guardianship, Conservatorship, and …

Saying The Quiet Parts Out Loud: Teaching Students How Law School Works, Alexa Z. Chew, Rachel Gurvich

Faculty Publications

The summer of 2020 was an inflection point for legal education’s relationship with racial and other inequities. After Minneapolis police murdered George Floyd, faculty, administrators, and students spoke out with increased urgency about the need to address race in law school curricula. For example, professors sought to give race context to cases found in law school casebooks by not presenting judicial opinions as neutral statements of the law. Many law schools, including our own, formally (re)dedicated themselves to helping students recognize and analyze structural inequalities and how the law perpetuates them.

Law schools focused on what their faculty and graduates …

Eviction Courts, Kathryn A. Sabbeth

Faculty Publications

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make …

Trusts From A To Z: Legal Ethics, Thomas Simmons

Faculty Publications

No abstract provided.

An Approach To Preventing Conflict: Unpacking The Standing Neutral, Dan Bumblauskas,, Kate Vitasek, Jim Groton

Faculty Publications

Contractual relationships are vulnerable to the damage caused by friction in relationships, particularly when this turns into a formal dispute. If negotiations fail, the next step is calling in a mediator, and perhaps ending up in arbitration or the court system. This paper argues for the proactive use of a “Standing Neutral” – a trusted, independent expert advisor (or a panel of three advisors) chosen by the contracting parties to help during their contractual relationship. Rather than being reactive to disputes, an organization can be proactive by a standing neutral as chosen by the contracting parties to help during their …

Diversity In Innovation Best Practices Guide, Laura Norris, Mary Fuller, Joy Peacock, Sydney Yazzolino

Faculty Publications

In 2020, the USPTO collaborated with the HTLI to propose a study designed to increase diversity in the patenting process, specifically targeted to in-house legal / IP department and their practices. The goal of the study was simple - harvesting the collective knowledge of nationwide IP professionals and producing an “insanely practical” guide to expand inventorship to a more diverse inventor population. By “diverse” we mean underrepresented or historically marginalized groups in the United States patent system. The term "diversity" can be interpreted differently in different countries. The HTLI research team collected this extensive list of over 90 best practice …